State v. Sloan

• Decision Date: 19 December 2006
• Docket Number: No. COA05-1513.,COA05-1513.
• Citation: 638 S.E.2d 36
• Parties: STATE of North Carolina v. Dwight Eugene SLOAN and Kolanda Kay Wooten, Defendants.
• Court: North Carolina Court of Appeals

638 S.E.2d 36

STATE of North Carolina v. Dwight Eugene SLOAN and Kolanda Kay Wooten, Defendants.

No. COA05-1513.

Court of Appeals of North Carolina.

December 19, 2006.

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Appeal by defendants from judgments entered 19 April 2005 by Judge John W. Smith in Wayne County Superior Court. Heard in the Court of Appeals 23 August 2006.

Attorney General Roy Cooper, by Assistants Attorney General C. Norman Young, Jr. & Thomas G. Meacham, Jr., for the State.

Nora Henry Hargrove, Wilmington, for defendant-appellant Sloan.

Richard B. Glazier, Fayetteville, for defendant-appellant Wooten.

BRYANT, Judge.

Dwight Eugene Sloan (defendant Sloan) and Kolanda Kay Wooten (defendant Wooten), defendants, appeal from 19 April 2005 judgments consistent with jury verdicts finding both defendants guilty of first degree murder. For the reasons stated below, we find no error.

Defendant Wooten and a witness, Sherquanda Fields (Fields), both had a relationship with the victim, Jamal Pearsall (Pearsall). On 23 August 2003, Pearsall saw the two together while they were looking for defendant Wooten's brother in a car driven by defendant Wooten's aunt. Pearsall became upset and ordered Fields to get out of the car. An argument ensued and defendant Wooten broke the window out of Pearsall's car with her hand. She then rode off, with Fields still in the car.

Later that night, defendant Wooten, Pearsall, and others met to discuss payment for the car window. Defendant Wooten's boyfriend, "Don Don," arrived, and attacked Pearsall. Following the confrontation, Pearsall departed with Fields, and the two spent the night at Fields's house. Pearsall set out the next morning for his mother's house.

Witness Nora Robinson (Robinson) testified that on 24 August 2003 she saw a man with a gun behind a tree. She went inside, and then heard gunshots. She looked outside, where she saw defendant Sloan walking away from Pearsall's car, trying to cock a jammed gun and muttering. Specifically, defendant Sloan said, "I'm going to kill this mother f____." Robinson watched as defendant Sloan got into a white car. She then heard Leanne Sutton (Sutton) yell from the car, "You should have shot the mother f____ in the head." Defendant Sloan denied that he had hidden behind the tree or fired the gun. He claimed that a housemate of his, Antonio Woods (Woods), shot the gun. He also testified that he never said, "I'm going to kill this mother f____," and that no one ever said he should have shot Pearsall in the head. After defendant Sloan got into the white car, defendant Wooten, who was driving, followed Pearsall's car as it drove away.

The evidence showed that there was a high-speed chase, during which the car Wooten was driving ran a stop sign, and Pearsall's car hit a parked car. Further testimony indicated that the white car driven by Wooten pulled even with Pearsall's car, and an unidentified black arm stuck out of the white car's window and shot into Pearsall's car.

Following the incident, defendant Sloan came forward voluntarily, accompanied by his mother and father, to discuss the matter with the authorities. SBI Agent Barbara Lewis (Agent Lewis) interviewed him, and testified from her notes. She stated that defendant Sloan said he had argued with Pearsall over some speakers that he believed Pearsall to have stolen. He told Agent Lewis that he had shot at Pearsall as he drove past Pearsall in a car driven by defendant Wooten. Agent Lewis further testified that defendant Sloan informed her that he did not intend to kill Pearsall, and that no one else in the car was aware that he had a gun prior to the shooting.

Defendant Wooten also talked to Agent Lewis. Agent Lewis stated that defendant Wooten told her that when defendant Sloan pulled out the gun and fired twice, she screamed at him, "Why did you do that, why did you do that?" Defendant Wooten told Agent Lewis that defendant Sloan responded, "[J]ust drive, don't worry about it, just drive."

At trial, both defendants were convicted of first degree Murder. Each now raises several assignments of error. For the purposes of this opinion, we will deal with the defendants separately. Defendant Sloan claims (1) the trial court erred in denying his motion to dismiss because there was insufficient evidence to uphold his conviction, (2) the trial court erred in admitting the hearsay statement of Leanne Sutton, (3) the trial court lacked jurisdiction as a result of a faulty indictment, and (4) the trial court erred in admitting photographs of Pearsall. We address these arguments in turn.

Defendant Sloan's Appeal

Defendant Sloan first argues that the trial court should have granted his motion to dismiss the charges on the grounds that the evidence was insufficient to persuade a rational trier of fact of each essential element beyond a reasonable doubt. Specifically, defendant Sloan contends that the evidence showed only that he recklessly discharged the weapon, not that he intentionally shot into Pearsall's vehicle. This argument is without merit.

Defendant Sloan attempts in his brief to cast his argument in a constitutional light. No such argument was presented at trial, however, and defendant Sloan makes no mention of a constitutional claim in his assignment of error. "Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) (citing State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)). "[The] `scope of appellate review is limited to the issues presented by assignments of error set out in the record on appeal; where the issue presented in the appellant's brief does not correspond to a proper assignment of error, the matter is not properly considered by the appellate court.'" Walker v. Walker, 174 N.C.App. 778, 781, 624 S.E.2d 639, 641 (2005) (quoting Bustle v. Rice, 116 N.C.App. 658, 659, 449 S.E.2d 10, 11 (1994)). Because the constitutional issue was neither raised at the trial level nor assigned as error, we will not consider it on appeal.

"In ruling on a defendant's motion to dismiss, the trial court should consider if the state has presented substantial evidence on each element of the crime and substantial evidence that the defendant is the perpetrator." State v. Fowler, 353 N.C. 599, 621, 548 S.E.2d 684, 700 (2001) (citations omitted). "The elements required for conviction of first degree murder are (1) the unlawful killing of another human being; (2) with malice; and (3) with premeditation and deliberation." State v. Haynesworth, 146 N.C.App. 523, 531, 553 S.E.2d 103, 109 (2001) (citing N.C. Gen. Stat. § 14-17; State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991)). "The evidence should be viewed in the light most favorable to the [S]tate, with all conflicts resolved in the [S]tate's favor. . . . If substantial evidence exists supporting defendant's guilt, the jury should be allowed to decide if the defendant is guilty beyond a reasonable doubt." Fowler, 353 N.C. at 621, 548 S.E.2d at 700 (citations omitted).

In this case, defendant Sloan killed Pearsall unlawfully, thus satisfying the first element. In his argument against the satisfaction of the other two elements, defendant Sloan relies primarily on his own evidence as to his acts and intentions. In ruling on a defendant's motion to dismiss, however, "[t]he defendant's evidence should be considered only if it is favorable to the [S]tate." Id. Though defendant Sloan contests the veracity of the testimony against him, Agent Lewis's recount of her interview with him, combined with the introduction of evidence showing that he said "I'm going to kill this mother f____," and that he had the gun when he pursued Pearsall's car, provided sufficient evidence to support a guilty verdict. Accordingly, defendant Sloan's first contention must fail.

Defendant Sloan next argues that the trial court erred in its admission of Robinson's hearsay testimony as to Sutton's statement, "You should have shot the mother f____ in the head." Because the testimony was properly admitted under the "excited utterance" exception to the hearsay rule, this argument is without merit.

It should be noted that although defendant Sloan continues to couch his arguments in constitutional language, he once again failed to object on constitutional grounds at trial. "Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." Lloyd, 354 N.C. at 86-87, 552 S.E.2d at 607.

"On appeal, the standard of review of a trial court's decision to exclude or admit evidence is that of an abuse of discretion. An abuse of discretion will be found only when the trial court's decision was so arbitrary that it could not have been the result of a reasoned decision." Brown v. City of Winston-Salem, ___ N.C.App. ___, ___, 626 S.E.2d 747, 753 (2006) (internal quotations and citations omitted).

"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801 (2005). "Hearsay is not admissible except as provided by statute or by [the] rules [of evidence]." N.C. Gen. Stat. § 8C-1, Rule 802 (2005). The "excited utterance" exception to the hearsay rule applies to "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." N.C. Gen.Stat. § 8C-1, Rule 803 (2005).

Defendant Sloan contends that the State failed to produce any evidence that Sutton was "excited" when she made the statement, "You should have shot the mother f____ in the head." Specifically, Defendant Sloan notes that the trial judge made no findings to that effect. The trial judge did, however, state, "It's an excited utterance." Moreover, as the State points out in its brief, the testimony itself provides evidence of excitement....